Offshore website publisher can be sued for defamation in New Zealand, judge finds

Aussie publisher fails to stay defamation proceedings

A recent judgment in the Wellington High Court has established that a newspaper running a website in Australia can be sued for allegedly defaming a New Zealand organisation and individual, even though the publisher does not have a physical place of business in this country.

An educational establishment in Wellington, Newlands University, and its director, Rochelle Forrester, sued Nationwide News Ltd, publisher of daily newspaper The Australian, for describing Newlands in pejorative terms in a feature article, implying that its courses did not confer proper qualifications.

It was included in a list of “wannabe universities” in the article, which also referred to the listed establishments as “degree mills".

The article complained of appeared in the newspaper, copies of which were available in New Zealand, but Newlands and Forrester acted in respect of the potentially wider New Zealand exposure through The Australian’s website, www.theaustralian.com.au.

The publisher applied for a dismissal or stay of the proceedings on the grounds that the article had been published in Australia and that New Zealand was therefore an inappropriate jurisdiction in which to try the alleged defamation. In a judgement on August 17, Judge D I Gendall rejected this argument and found that publication had occurred in New Zealand through the website’s accessibility here.

“To my mind, if a defendant chooses to upload information on the internet, being aware of its reach, then they assume the associated risks, including the risk of being sued for defamation,” Judge Gendall says. “If it were held otherwise, namely that publication occurred at the place of uploading, defendants could potentially defame with impunity by uploading all information in countries with lax, or no, defamation laws.”

The judgment refers to the landmark action brought in Australia in 2002 by mining magnate Joseph Gutnick in which it was alleged he had been defamed on a website operated from the US by Dow Jones. Gutnick sued Dow Jones in his home state of Victoria and the High Court of Australia decided this was valid. Judge Gendall says he is taking the same stance as that court took.

In New Zealand law, the decision revolves around High Court Rule 219, which lays out conditions under which a case can be brought against a party outside New Zealand. The first of these conditions is “where any act or omission in respect of which damages are claimed was done or occurred in New Zealand.” The judge held this condition to be satisfied.

The plaintiffs had attempted to serve proceedings in what they saw as a physical place of business of The Australian in Wellington — the office of the newspaper’s parliamentary press gallery correspondent. Judge Gendall held that this was not “a place of business” as defined in relevant law. To have the action heard here, the defendant must have a “good arguable case” and Judge Gendall argues that this is so in Newlands' case, without, of course, pronouncing finally on the substantive issue of defamation.

The defendants also argued that New Zealand was not the most appropriate forum (the forum conveniens) for resolution of the action. Judge Gendall finds “it is appropriate that the proceeding be held in New Zealand, for the purpose of vindincating [the plaintiffs’] reputation in this country.”

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